Incapacity

Abstract

Abstract Incapacity can operate as a ground of restitution in its own right, in that it enables the claimant who is incapacitated to secure restitution where the incapacity arises from mental disorder, minority, or institutional incapacity. In each of these cases, there is a strong policy of protection to ensure that the person who is incapacitated does not suffer from entering into foolish transactions. This chapter examines whether the defendant's incapacity in some way can operate as a defence to defeat a restitutionary claim regardless of the nature of that claim. It discusses restitutionary claims founded on the reversal of unjust enrichment, restitutionary claims founded on wrongdoing such as tort and equitable wrongdoing, restitutionary claims founded on the vindication of property rights, mental incapacity, institutional incapacity, and whether a defence of incapacity should be recognised.